STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6910

August 5, 1996

COMMUNITY COLLEGE DISTRICTS:

Regulation of construction of buildings by community college districts

Building construction by community college districts is subject to the State Construction Code Act of 1972.

Honorable R. Robert Geake

State Senator

The Capitol

Lansing, MI

You have asked whether building construction by community college districts is subject to the State Construction Code Act of 1972, 1972 PA 230, MCL 125.1501 et seq; MSA 5.2949(1) et seq (Act).

The Act generally regulates building construction in this state. A local official charged with regulating building construction must enforce the State Construction Code Act of 1972 unless, under section 8 of the Act, the governmental unit elects to exempt itself in part or in whole from the Code by adopting and enforcing one or more nationally recognized model codes.

Section 28(2) of the Act provides that the Act does not affect 1937 PA 306, the statute regulating school building construction. Also, section 8(9) of the Act provides that "[l]ocally adopted codes do not apply to public or nonpublic schools within the governmental subdivision without concurrence by the school authorities having jurisdiction."

1937 PA 306, MCL 388.851 et seq; MSA 15.1961 et seq, assigns regulation of school building construction to the Superintendent of Public Instruction. Section 1 of 1937 PA 306 provides that the act applies to the erection, remodeling or reconstruction of public and private school buildings and additions to those buildings. "School buildings" are defined by section 1a(a) of 1937 PA 306 as "all buildings used for school purposes."

OAG, 1951-1952, No 1350, p 160, 162 (January 10, 1951), concluded that 1937 PA 306 applied to the construction of a building at what is now Wayne State University. Wayne University was a part of the School District of the City of Detroit when that opinion was issued and the opinion's conclusion that 1937 PA 306 applied to those buildings was based upon that fact.

OAG, 1952-1954, No 1837, p 440, 441 (November 8, 1954), concluded that 1937 PA 306 also applied to classroom buildings at both public and private colleges. In so concluding, that opinion appears to have assumed that the conclusion in OAG, No 1350, with regard to Wayne University extended to all public and private colleges, no matter how organized. In doing so, OAG, No 1837, failed to recognize that Wayne University had been operated by a local school district and that it was because of this fact that construction of buildings at Wayne University was governed by 1937 PA 306. Moreover, an examination of the historical context in which 1937 PA 306 was enacted makes it quite clear that OAG, No 1837, erred in extending that act to the construction of buildings by colleges not operated by local boards of education.

1937 PA 306 was designed to replace a previously repealed chapter of the School Code of 1927 that had governed approval of plans for school buildings within a school district. OAG, No 1350, supra, at p 161. That chapter stated:

The clear language of the previously repealed statute upon which 1937 PA 306 is based limited the Superintendent of Public Instruction's approval to school buildings constructed by a school district.

1937 PA 306, as originally enacted, did not require the Superintendent of Public Instruction's prior approval of school building construction; that provision was added in 1941. See, 1941 PA 148. Moreover, there was no authority for community colleges to operate independent of a local school district in 1941; it was not until 1955 that community college districts were created and recognized as entities independent from local school districts. See, 1955 PA 188, now codified as the Community College Act of 1966, MCL 389.1 et seq; MSA 15.615(101) et seq. Thus, at the time the Superintendent of Public Instruction was given the authority to regulate school building construction under 1937 PA 306, the only community colleges in existence were operated by local school districts. There is nothing in 1937 PA 306, as amended, to suggest that the Superintendent of Public Instruction's authority over school building construction was extended to community colleges or to other post-secondary institutions that are not under the control of a local board of education.

Information from the Michigan Department of Education and Michigan Department of Labor supports the conclusion that 1937 PA 306 is limited to public and nonpublic elementary and secondary education facilities and post-secondary facilities operated by local boards of education. ⁽¹⁾ The Superintendent of Public Instruction's and the Department of Education's interpretation of 1937 PA 306, as reflected by their long-standing administrative practice, has been that post-secondary institutions not under the control of a local board of education need not submit building construction plans for the Superintendent of Public Instruction's approval. The Michigan Department of Labor's interpretation of the State Construction Code Act of 1972 has historically required community colleges that are not under control of a local board of education to comply with the Act. Thus, both departments have construed 1937 PA 306 as applying only to public and nonpublic elementary or secondary facilities or post-secondary facilities under local board of education control. Those interpretations are reasonable and, therefore, must be given considerable weight. Golonka v Dep't of Education, 106 Mich App 28, 33-34; 308 NW2d 425 (1981).

It is my opinion, therefore, that building construction by community college districts is subject to the State Construction Code Act of 1972. The conclusion in OAG, 1952-1954, No 1837, that 1937 PA 306 applied to public and private college buildings not under the control of a board of education of a local school district, is superseded.

Frank J. Kelley

Attorney General